Real Estate Law – Eminent Domain

Eminent Domain

Both the New York State Constitution (Art. IX, Sec.1(e)) and the United States Constitution, 5th Amendment permit governmental entities to take private real property for public use under eminent domain. Ok, but what is eminent domain?

What is Eminent Domain?
Eminent Domain is the right of the government to take private property for a public purpose. It is literally government acquisition through forceful sale. Here in the State of New York these issues are covered by the NY CLS EDPL (Eminent Domain Procedure Law) statutes, the primary purposes of which are as follows:

  • to provide the exclusive procedure by which property is acquired by exercise of the power of eminent domain in New York state;
  • to assure that just compensation is paid to those persons whose property rights are acquired by the exercise of the power of eminent domain;
  • to establish opportunity for public participation in the planning of public projects necessitating the exercise of eminent domain;
  • to give due regard to the need to acquire property for public use as well as the legitimate interests of private property owners, local communities and the quality of the environment, and to that end to promote and facilitate recognition and careful consideration of those interests;
  • to encourage settlement of claims for just compensation and expedite payments to property owners;
  • to establish rules to reduce litigation; and
  • to ensure equal treatment to all property owners.

At times our government, be it city, state or national, needs to make way for a road or public park, or to provide housing for disadvantaged persons or other such Civics/Public projects like President Trump’s “Build The Wall” and someone happens to own the requisite land in question. In order for the government to embark on a public improvements project, it must first own the land in question before it starts sticking shovels in the ground.

Under the concept of Eminent Domain the government can literally take the property from the owner, however, The United States and New York Constitutions require the government to pay an owner fair compensation if it wants and needs the owner’s property. Our government can’t just take property from a landowner and tell him/her to take a hike. Eminent domain is not as “authoritarian” as it may seem at first blush.

Public Notice
Under the EDPL, prior to any acquisition, the government must conduct a public hearing at a location reasonably proximate to the property that may be acquired for such project. This requirement is meant to provide meaningful notice to the public allowing for public review of uses to be served by the proposed project and the impact on the environment and residents of the locality where such project will be constructed.

At the public hearing, the government is to outline the purpose, proposed location, or alternate locations of the public project and any other information it considers pertinent, including maps and property descriptions of the property to be acquired and adjacent parcels.

Aggrieved Parties
The NY CLS EDPL provides the means for unhappy or harmed parties to combat the eminent domain of a specific parcel of land and/or property. Within thirty (30) days after the government’s completion of the publication of its determination and findings, any aggrieved person may seek judicial review by the appellate division of the supreme court of that jurisdiction by the filing of a petition. In the state of New York, the eminent domain process can only be stopped if the proposed taking does not meet the requirements for public purpose or public necessity. If it can be determined that the proposed taking does meet these requirements, there is a good chance an aggrieved party can bring a halt to the eminent domain proceedings.

Just Compensation and Fair Value
In most cases, a proprety owner won’t be able to prevent the government from acquiring the owner’s land, but the owner is entitled to just compensation under eminent domain law. NY CLS EDPL requires the government to pay each property owner the fair market value that, generally, is the same amount of money that the sale of the property would bring under current market conditions. Value is determined as of the date the State acquires the property.

So we know the government has to “pay” for the property in order to acquire it for a public undertaking. Figuring out what would be a just purchase price for fair value remains questionable, however. Fair market value is usually considered to be the highest price somebody would pay for the property, were it in the hands of a willing seller. The date upon which the value is assessed will vary, depending upon the governing law. In making its appraisal, the government examines the various features of an owner’s property, and the prices at which properties similar (“comps” and/or “broker price opinions”) to the owner’s property are being sold and appraisers are also typically utilized to assist in the negotiation process for coming to a fair valuation.

Interesting item to note is that in most legal matters, the “burden of proof” falls on one party or the other. However, in EDPL cases neither party technically has a burden of proof in a condemnation matter. The courts have held that since fair market value is found by weighing ALL of the evidence, neither party has the burden of proof on the issue of the amount of compensation.

If you have any questions or legal needs, don’t hesitate to contact us for assistance.

This document/post/article is not to be considered as legal advice. Content and information contained herein is subject to changes, modifications, and may contain inaccuracies or out-of-date information. As with any legal matter or other matters of importance, consultation with an attorney or professional is the best course of action.